Ballots are composed, edited with word processing software and stored electronically.

Ballots are composed, edited with word processing software and stored electronically. Ballots can be made available by email that get sent electronically to the commercial Printer. Or Ballots that get sent to the Secretary of the Commonwealth Elections Division unit that produces the Ballots. Likewise composed, edited with word processing software and stored electronically are the Absentee Ballots. And the Specimen Ballot Postings put up on the walls for voters to read in the entrances at the Polls.

———- Shawn Williams ———-
I have received your letter appealing the response of the City of Boston (City) to
your August 21, 2012 request for records. See G. L. c. 66, s 10(b) (Supervisor of
Records has authority to resolve public records appeals); see also 950 C.M.R. 32.08(2)
(appeal process).
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66
http://www.lawlib.state.ma.us/source/mass/cmr/950cmr.html

Specifically, by email you requested a copy of the Boston Ward 3
Precinct 5 Democratic specimen ballot for the September 6, 2012 election. It is my
understanding it was your preference to be provided the specimen ballot by electronic
mail.

In an August 24, 2012 response Mr. John Donovan from the City’s Election
http://www.cityofboston.gov/elections/
Department (Department) offered to provide you with a hard copy of the record
responsive to your request. In this response Mr. Donovan also informed you that the
Department did not possess electronic copies of specimen ballots. Thereupon this appeal
was submitted.

A record holder’s duty to comply with requests for information extends only to
records that are in existence and in his custody. There is no obligation to create a record
in response to a public records request. See G. L. c. 4, s 7(26) (defining “custodian” as
the public employee with routine access to or control of public records).
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleI/Chapter4

Accordingly, a government agency would not be obligated to create electronic records which essentially
produce a new record in response to a public records request. See G. L. c. 66, s 10(a); 32
Op. Atty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in
response to a request for information).
http://archive.org/details/reportofattorney1977mass

In a September 14, 2012 telephone conversation Mr. Sabino Piemonte from the
Management Office of the Department confirmed to Michael Pagones, an attorney on my
staff, that the Department does not possess specimen ballots in electronic format.

There is a presumption that public officials perform their duties in an honest and
impartial manner. LaPointe v. License Bd. of Worcester, 389 Mass. 545, 459 (1983); See
also Konover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992)
(presumption that public officials will perform honestly and impartially).
http://masscases.com/

Whereas the Department offered to provide you with a copy of the record
responsive to your request, and further whereas the Department has no electronic copy of
the record in its custody, I will consider this administrative appeal closed.

Very truly yours,
Shawn A. Williams, Supervisor of Records

cc: Mr. John Donovan, City of Boston Elections Department
http://www.cityofboston.gov/elections/

September 24, 2012
SPR12/251

The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
Shawn A. Williams, Supervisor of Records
One Ashburton Place 17th Floor Room 1719
Boston Massachusetts 02108
http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm
tel 617 727-2832
fax 617 727-5914

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